Senator HRUSKA. Thank you, Mr. Chairman.

It is customary, the chairman realizes and recalls, that we always defer to members of the Cabinet first before we get into the testimony by members of the committee and then later by Members of the Senate at large.

Mr. Chairman, I should like to say that the hearings of this committee last year and this year and the wide public discussion of this subject, climaxed by the President's message which the Congress received yesterday-all of these things augur well for prompt and favorable action on a much-needed constitutional amendment. The Senator from Nebraska would like to say that by and large, he is in agreement with Senate Joint Resolution 1. Certainly I am in full agreement with sections 1 and 2.

Section 3, provides that "if the President declares in writing that he is unable to discharge the powers and duties of his office such powers and duties shall be discharged by the Vice President as acting President." In that regard, I shall just make the suggestion that the committee consider some language-it can be very concisely stated, I am sure which would enable the President to provide for a brief and limited transfer of Presidential powers to the Vice President as acting President during periods of the President's absence from the country, or otherwise out of realiable communication. I shall not press the point any further than to make that suggestion.

It is fortified somewhat by the statement made by former Attorney General Herbert Brownell a year or two ago before this subcommittee. Sections 4 and 5, however, are subject to two observations. The first is that section 5 violates the doctrine of separation of powers, as I understand it. Second, it details procedures in a way which is better left for legislation by Congress.

In regard to the separation of powers, section 5 provides that in disagreement between the President on the one hand and the judgment of the Vice President and a majority of the Cabinet on the other, Congress will then decide the issue by a two-thirds vote and will do it immediately. I shall not at this time go into the question of what "immediately" means and what difficulties would be encountered in regard to construing "immediately." That has been pretty well covered. But I do suggest that it is customary for the Congress to proceed by way of hearings. They would want evidence. They would be entitled to it. They would be entitled to have members of the Cabinet come before it to express their opinions and their report on observations of the President's condition, health, and so on. Certainly there would be debate in the Senate and in the House as well. When we say "debate," then of course, we might get into some difficulty as to the length of that debate.

It is my suggestion, that the Cabinet should decide the factual issue as to whether or not their appraisal of the situation is correct or whether the President, in saying "I am once again able to resume the duties of the Presidency," is right.

There are several points to be made on this question. One is, as I have already said, that it is a factual issue rather than a policy issue. The policy issue has already been decided in the preceding election. They want Mr. X as President of this country. Every fair intendment should be given to see that the continuance of that man in office should not be subverted.

Who is the best informed to resolve and decide this factual question? It would be those who are close to the President. Those who see him, talk to him, and observe him. Those who have had a chance to talk to his physicians and to members of his family.

This factual issue should be resolved by those who are loyal to the President and sympathetic to him. It should be at the hands of people who would give him every fair intendment for his continuation of service as President. If doubt exists, they should resolve it in favor of the President. But if there is a flagrant case of disability, then certainly they should act and I feel confident would act firmly. There is one other tremendous advantage that Senate Joint Resolution 6 would have over the provisions of section 5 of Senate Joint Resolution No. 1. That is that the Cabinet could act expeditiously without being so hurried in their decision that they would sacrifice substance and merit for a decision.

If they do not act and do not support the Vice President, then, of course, the issue is automatically resolved. The President resumes the discharge of the duties of his office.

Mr. Chairman, there has been a great deal of public discussion of this amendment. I want to congratulate the chairman for the fashion in which he has held these hearings this year and last year. The hearings and the fine fashion in which he arranged them contributed greatly to the public discussion of this problem, which is so wholesome and so healthy. I should like to place in the record at this point some of the printed reactions to these proceedings.

One is a New York Times editorial of January 5, 1965, which comments on the report of the Committee for Economic Development under the chairmanship of Marion B. Folsom. That report is a splendid report. It is very thoughtful and very thorough. I quote only briefly :

The group proposed some revisions in the Bayh amendment, most importantly a shift in the main burden of responsibility for declaring a President's disability from the Vice President to the members of the Cabinet. This would be an improvement.

That was from the New York Times article.

There was another one in the Washington Post, an editorial entitled "An Achilles Heel?" There they dwell in particular upon this matter of time:

What does the word "immediately" mean? Would it require both Houses of Congress to vote without debating the issue? Would it permit any filibustering in the Senate?

Then they go on into the matter of saying would it be wise to prescribe a 10-day period or maybe a 15- or 30-day period, whatever it may be? In that respect this editorial is a very enlightening one. There was another one in the Washington Post on January 8, Mr. Chairman, which I would like included. An article appeared in the Quarterly of the American Interprofessional Institute, entitled "The Year We Had No President" written by Richard H. Hansen, who is the author of a book by that same title and a great student of this problem.

I should like to ask unanimous consent that these documents be incorporated into the record at the conclusion of my remarks and

that I then be given permission to file the statement which will be more definitive and more particular as I have described before. Senator BAYH. Without objection, the material will certainly be included.

(The documents referred to follow :)

[From the Washington Post]

PRESIDENTIAL SUCCESSION AGAIN

Improvements in the law regarding Presidential succession and Presidential disability will be one of the most urgent tasks of the present Congress. Fortunately, Senator Bayh is again pressing for action on his proposed constitutional amendment and hearings are promised in both Houses. President Johnson will have recommendations on the problem. For the first time there appears to be a consensus as to the nature of the changes to be sought.

The Research and Policy Committee of the Committee for Economic Development has released an able study of the subject which looks in the same direction as the Bayh amendment. In addition this group headed by Marion B. Folsom lays down some general principles that will help to guide the debate. There must be no break in the exercise of the Presidential power. No doubt should be permitted to arise as to who holds the office. The procedures for transfer of the power should be fast, efficient, and easily understood. No sharp shift in policy or change of party should be involved.

The heart of all the plans being currently discussed is replacement of the Vice President as soon as the office becomes vacant. The CED report notes that eight Vice Presidents have become President, seven have died in office and one resigned. The office has been vacant a total of more than 37 years since it was created. The CED report endorses the Bayh resolution passed by the Senate last year authorizing the President to nominate a Vice President whenever a vacancy occurs, although it suggests confirmation by a joint session of Congress rather than by the two Houses acting separately, as the resolution provides.

In dealing with Presidential disability, the CED favors a more extensive departure from the Bayh amendment. Like the Bayh resolution, the CED would permit the Vice President to determine that the President was disabled (if the President did not declare his own disability) with the concurrence of a majority of the Cabinet. But on the termination of disability Senator Bayh would bring the Vice President, the Cabinet and Congress into the picture, if necessary. The CED would leave the matter entirely to the Cabinet and the President.

No doubt either plan would work satisfactorily. The CED favors a decision by the Cabinet alone because of its strong belief that there should never be any question as to who holds the Presidential power. The point is vital, but the CED report seems to reflect a misreading of the plan approved by the Senate. It would permit the President to resume his powers and duties when he proclaimed an end of his disability, unless his recovery should be challenged by the Vice President and a majority of the Cabinet. In that event Congress would "immediately decide the issue." As we understand the language there would be no hiatus in which the authority would dangle somewhere between the two. Upon a challenge by the Vice President and a majority of the Cabinet, authority would remain with the Vice President until a vote in Congress had been taken. This is a point that will need clarification beyond any possibility of confusion. When that has been done, we hope there will be very broad support for the version that emerges. The country cannot afford to risk any confusion whatever as to how the Presidential office will be filled or to allow any time lapse that might expose the country to national disaster.

[From the New York Times]

LINE OF SUCCESSION

"Only in the White House can you finally know the full weight of this office," President Johnson told Congress last week in his state of the Union message. It is a sentiment that each of his predecessors would affirm.

Because the responsibilities of the Presidency are so enormous, the rather casual, ramshackle arrangements the American people tolerate to cover Fresidential death or disability are shocking. For more than 13 months, the

United States has been without a Vice President. Until Hubert H. Humphrey is sworn in on January 20, it will continue to be without a fully qualified, popularly chosen, potential successor for its highest office.

With President Johnson's backing, Senator Birch Bayh of Indiana has reintroduced his proposed constitutional amendments for correcting the deficiencies in the present machinery. It is encouraging that Chairman Emanuel Celler, after disgracefully shilly-shallying on this issue last year out of a mistaken deference to Speaker McCormack's sensibilities, has announced that he will make it the House Judiciary Committee's first order of business. The Senate unanimously adopted the Bayh amendment last September but the House took no action.

The amendment provides that whenever there is a Vice-Presidential vacancy, the President shall nominate a Vice President to take office upon confirmation by majority vote of both Houses of Congress. If the President were to become disabled and could not communicate that fact in writing, the Vice President would take over temporarily as Acting President if he notified Congress and had the concurrence of a majority of the Cabinet. The President could reclaim his powers immediately upon his recovery.

If disagreement developed over whether he had recovered, Congress would decide. Except for this final provision, the disability arrangement is identical with that worked out by President Eisenhower and Vice President Nixon in 1958 and adopted by each of their successors.

A unit of the Committee for Economic Development, under the chairmanship of Marion B. Folsom, former Secretary of Health, Education, and Welfare, has just released a thoughtful study of this succession-and-disability problem-one that merits careful congressional consideration. The group proposes some revisions in the Bayh amendment, most importantly a shift in the main burden of responsibility for declaring a President's disability from the Vice President to the members of the Cabinet. This would be an improvement.

We also strongly endorse the committee's suggestion that Congress repeal the 1947 Succession Act, which interposed the Speaker of the House and the President pro tem of the Senate ahead of the Cabinet in the line of succession. Even if the amendment is ratified, this Succession Act could still be critically important if, for example, a President and a Vice President happened to be assassinated at the same time.

The overwhelming argument against the present law lies in the simple fact that, for 8 of the 18 years since it was adopted, Congress has been controlled by the political party opposed to the President. To add to the death of a Chief Executive the further disrupting effect of a change in party control of the White House makes no sense. This is the year for Congress to put the line of succession in better order.

[From the Washington Post, Jan. 28, 1965]

AN ACHILLES' HEEL?

The proposed constitutional amendment on presidential succession and disability merits the high priority it has been given by the Senate and House Judiciary Committees. Since the Senate passed the resolution by a vote of 65 to 0 last year, Senator Bayh, its chief sponsor, hopes to conclude the new hearings in 1 day-Friday. Chairman Celler of the House Judiciary Committee will begin hearings on February 9. If action is similarly prompt on the floors of the Senate and House, the proposed amendment can be sent to the States for ratification within 2 or 3 months.

Much work has been done on the resolution sponsored by many Members of both Houses, the American Bar Association, and other groups. Some questions about its meaning remain, however, and these will doubtless be the chief points of interest in the forthcoming hearings. For example, the resolution provides that if the President should declare his disability at an end and the Acting President (the Vice President) should disagree, with the concurrence of a majority of the Cabinet, the issue should be "immediately" decided by Congress.

What does the word "immediately" mean? Would it require both Houses of Congress to vote without debating the issue? Would it permit any filibustering in the Senate? Representative McCulloch has suggested an amendment to this provision which would require Congress to vote within 10 days. But 10 days of debate on such an issue, with feeling mounting on both sides, might be calamitous.

We agree with Mr. McCulloch's feeling that the provision ought to be more specific, but his particular remedy might be worse than the current vagueness.

The chief question that arises is whether or not Senators would be permitted to filibuster the issue and thus indefinitely prevent the President from regaining his powers. This loophole ought to be closed. In our opinion, the question of restoring the President's powers ought to be made nondebatable (since the facts would doubtless be well known from the President's declaration and the Vice President's written report to Congress) or the period of debate should be specifically limited.

We do not assume that the Presidential power would be in limbo if such a dispute arose between the President and Vice President. The powers of the Presidency would be in the hands of the Vice President and would remain there, if the Vice President and the Cabinet thought the President still disabled, until a vote in Congress could be taken. But there should be no possibility of filibustering against the decision of so momentous an issue. One of the chief reasons for enactment of the proposed amendment is elimination of the uncertainty resulting from a Presidential illness. The elimination of uncertainty requires elimination of the filibuster as an instrument of obstruction in such cases.

[From the Quarterly of the American Interprofessional Institute]

THE YEAR WE HAD NO PRESIDENT

(Richard H. Hansen, Lawyer, Lincoln, Nebr.)

"Five U.S. Army warrant officers, members of the White House Army Signal Agency, have a unique assignment. They are entrusted with a large leather pouch, with a double lock. This pouch contains all the supersecret messages and codes to put the Nation's key emergency plans into effect. These are the plans which only the President can initiate.

"They are not plans for declaring war. They are plans to meet any military challenge to the security of the United States and its allies. The pouch contains the coded key to unleash our retaliatory forces, if we are attacked."

On the President's desk sits a telephone with a direct hot line to the Armed Forces Control Center. A few words by the President into the mouthpiece and the Nation's retaliatory forces are on their way.

What would have happened if Lyndon Johnson had had a disabling heart attack on November 22 and the Communists had chosen that moment to make a nuclear strike? True, Kennedy had a private agreement with Johnson to cover the contingency of Kennedy's incapacity, but there was no law on the books to cover either an incapacity by Kennedy or Johnson or both.

The majority of Americans, at least until November 22, have been too prone to subscribe to the comforting fallacy that the Vice President automatically takes over as a substitute President; we have been indifferent to the problem because it seems so basic that we have taken for granted that there is statutory provision for such contingencies. But there is no provision in the Constitution or laws of the United States for determining when a President or Vice President is disabled. President Eisenhower initiated the idea of a written informal agreement with Nixon to cover a presidential inability; John F. Kennedy made a similar agreement with Lyndon Johnson in August 1961, but we never knew whether it was oral or in writing. We do know that the present agreement on presidential inability between President Johnson and Speaker McCormack, the second in line, is purely verbal. So there has been a "regression" on even the private agreements.

American, history from 1881 to November 22, 1963, illustrates the potential for catastrophe in this dangerous gap in our law. In considering the cases of Presidents Garfield, Cleveland, and Wilson, I ask you to consider what would happen if similar incidents should occur today.

Next to John F. Kennedy and Theodore Roosevelt (who invented those damned hikes) James A. Garfield was the country's youngest President. He was barely 50 when he took office in 1881. It was one of the sad quirks of history that he had one of the shortest terms of any President-a mere 7 months, for he was shot on July 2, 1881, and died 90 days later. During this last month of his illness he had hallucinations and was completely out of his mind. The only presidential act he was able to perform was the signing of the extradition paper. For 90 days the operations of the executive branch were paralyzed. And the